Lewis v John
| Jurisdiction | England & Wales |
| Judgment Date | 01 August 1838 |
| Date | 01 August 1838 |
| Court | High Court of Chancery |
English Reports Citation: 47 E.R. 375
LORD CHANCELLOR
S. C. 9 Sim. 366; 7 L. J. Ch. 242.
[8] lewis v. john. V.-C. May 8, August 1, 1838. [S. C. 9 Sim. 366; 7 L. J. Ch. 242.] Mortgagee not entitled, as against devisees, to the costs of an action to recover his debt out of the personal estate of the mortgagor. Form of equitable mortgagee's decree, some of the Defendants devisees of the mortgagor being infants. Equitable mortgage by deposit of copy of Court Roll. In June 1817, David John executed to the Plaintiff a bond for .120, and in July following signed a memorandum, agreeing to surrender certain copyhold lands by way of mortgage as a further security for such sum; and at the same time a copy 376 LEWIS V. JOHN C. P. COOPER 9. of an entry on the court rolls of the manor, of the said David John's admission to the lands, was placed in the Plaintiff's hands. In July 1822, David John died, having by his will devised the lands to his widow and executrix for life, with remainder to all his children absolutely. Upon his death some proceedings were taken at law, but the same were soon after abandoned, and this suit was instituted against the widow and children, of whom some were infants. The bill prayed that an account might be taken of [9] what was owing to the Plaintiff for principal and interest, and that his costs of the suit and of the proceedings at law might be taxed; and that the copyhold lands might be sold, and the proceeds applied in payment of such principal money, interest, and costs; and in case such proceeds should be insufficient for the payment thereof, then that the deficiency might be made good out of the general assets of the said testator in the usual way. Mr. Knight Bruce and Mr. Spurrier, for the Plaintiffs. Mr. Cooper and Mr. Wilbraham, for the children, objected that in this instance the costs at law could not be such as ought to be reimbursed out of the copyhold premises. vice-chancellor [Sir Lancelot Shadwell]. If it shall turn out (as it probably will) that the proceedings at law were nothing more than an action on the bond against the widow, in her character of executrix, to have satisfaction out of the personal estate, I am of opinion that the Plaintiff cannot have the costs of that action as against the children, the devisees. The following decree was eventually drawn up :- Our. Declare that the Plaintiff is entitled, by virtue of the deposit of the copy of the court rolls of the manor of Newton Nottage, relating...
To continue reading
Request your trial
-
Bell v Carter
...of proceedings, for after the sale nothing may turn out to be due. He cited Parker v. Hmtsefield (2 Myl. & K. 419); Lewis v. John (1 C. P. Coop. 8); Meller v. Wootys (\ Keen, 16); King v. Leach (2 Hare, 57); Thorpe v. Garlside (2 Y. & Coll. Ex.) 730); Lister v. Turner (5 Hare, 281). Mr.| R.......